Terms of Business – Allan, Black & McCaskie

Terms of Business – September 2022

The professional conduct of this firm is regulated by the Law Society of Scotland, Atria One, 144 Morrison Street, Edinburgh, EH3 8EX, Tel: 0131 226 7411. Consistent with their view of good practice, the Law Society wishes us to advise of our terms of business.

The Firm’s Data Protection and Privacy Policies are not repeated within these Terms of Business but can be accessed via these links, or at the Firm’s website at www.abmsols.co.uk. In our dealings with all our clients we aim to provide a high quality service to find out what our clients want and achieve it. We try to work quickly and efficiently to conclude your business in a competent and professional manner and on a reasonable time scale. The demands of our business cannot readily be predicted and at times we require to prioritise work and cannot deal with everything as rapidly as we would wish. The nature of legal work, particularly court work, often makes it difficult to estimate precisely how long something will take to complete. We will attempt to meet your timescales but this is largely outwith our control and is often affected by the co-operation (or lack of it) we receive from other people.

We are open usual business hours (i.e. 9 am – 1 pm and 2 pm – 5 pm Monday to Friday). We will accept instructions from you either in the course of a meeting, by telephone, letter, fax or e-mail. If the person you require to speak to is unable to take your call or if we are closed for a local or statutory holiday you can leave a message on our answering service or e-mail us. We may also be available to meet with you outside normal office hours by prior appointment. In the event that you are unable to access our office via our stairs, we can facilitate appointments at our Property Shop, AB&S Estate Agents at 24 Batchen Street, Elgin which is based at ground floor level.

Dependent on the nature of your instructions we may sometimes ask you to confirm those instructions in writing, or we may write to you following upon a meeting or conversation to confirm our understanding of your instructions. If you think that we have misinterpreted your instructions you should advise the person dealing with your file at once.

If you think that you may qualify for Legal Advice and Assistance or Legal Aid please discuss this with the person dealing with your file. If you do qualify for either of these it is important that you read the Schedule.

Depending on the legal issues which arise in connection with your file, one or more partners or members of our professional staff may act on your behalf. A partner will be ultimately responsible for your file and will oversee the day-to-day work associated with the matter. In the event of holiday arrangements or staff illness, your file may be passed to another member of staff.

It is, of course, our professional obligation to keep your business confidential. Information will not be disclosed to third parties unless authorised by you or required by law. You should note that clients of this firm may no longer be able to rely on the duty of confidentiality where the solicitor acting knows or suspects that criminal property is involved. If this is the case the solicitor requires to report such knowledge or suspicion to the National Crime Agency as failure to do so may result in the solicitor, and the client, facing a possible penalty of imprisonment.

Good professional practice requires that we do not act for two or more parties if there is a conflicting interest. Please advise us at the outset if you are aware of potential conflicts which may arise. In the event that we think there is a conflict of interest we will discuss this with you at once to achieve a mutually acceptable resolution.

The Law Society of Scotland require us to observe strict Accounting Rules. Any sums of money held on your behalf will be placed in our general client account or alternatively in a specific designated account opened on your behalf, depending on the sums held and how long we require to hold these on your behalf. Interest payable on a designated account will be calculated in accordance with prevailing rates. The financial actings of all the Scottish Solicitors are “protected” by the Law Society’s Guarantee Fund, which provides a unique level of protection for clients in the unlikely event that a solicitor “defaults” when handling client funds.

Unless we agree otherwise in writing, we shall assume that where we act for more than one person but only one of them tells us what to do, that person has the authority of the other or others to do so. If this changes, you are required to advise us. Where we act for more than one person, each person for whom we do work is equally responsible for the instructions given to us and ultimately for payment of our fees and outlays in connection with that matter. If we are given instructions by a Private Limited Company then, unless otherwise agreed with you in advance, it is a condition of our acceptance of these instructions that the directors are jointly and severally liable along with the company for payment of our fees, outlays and any interest thereon. If you do not understand what this means please ask us to explain.

It is often difficult to estimate the work that will be involved and thus the fee that will be incurred by you. Fees will be charged either in a lump sum or on the time spent carrying out the work. In assessing the fees we take into account a number of important factors including the value of the transaction, the complexity and difficulty of the matter, the skill, knowledge and responsibility involved, the urgency of the matter and the place where we are required to carry out the work. Except in some circumstances (such as unusual responsibility or complexity, home visits or out of hours working) our work will be charged at the rate of 10 Units per hour. Please refer to the Schedule relating to general business. In Executry cases our fees will be assessed by a professional firm of Law Accountants. In respect of conveyancing matters the fee is usually charged by way of a lump sum. If your transaction relates to conveyancing an estimate of the costs likely to be incurred will be produced for you. Sometimes we will require confirmation of your ability to fund the transaction and a deposit towards outlays or advance payment of fees may be required. We may also render interim fee notes as the matter progresses. With long running pieces of business this ensures that you, as the client, can spread your costs. VAT will fall to be added to all fees invoiced. The Firm reserves the right to increase an estimated fee if the matter becomes protracted or complicated due to unforeseen events.

We will issue our fee note at the end of a matter or at regular intervals. Payment is due within 30 days of the date of the account and if it is not paid within that time we reserve the right to charge interest on the amount overdue at 4% above the Clydesdale Bank plc base rate. If you do not pay the account on time we reserve the right to stop working for you and to charge you for the full amount of work which we have carried out on your behalf.

In the event that you do not consider our fees to be reasonable then you have the right to have your fees assessed by an independent public official known as the Auditor of Court. If the Auditor reduces the amount of our original fee we will only charge the reduced amount and we will pay the Auditor’s costs. If, however, the Auditor confirms that our fee is correct or undercharged we reserve the right to recover from you any additional fees to which the Auditors certifies we are entitled. In these circumstances you will be responsible for the Auditor’s costs. On occasions to ensure that a file has been correctly charged we may voluntarily send our file to the Auditor of Court.

We have the right to ask you to make payment of outlays associated with this matter before they are incurred. Frequently, however, to allow the matter to run smoothly we will meet such outlays on your behalf. You will require to reimburse those outlays within 7 days of being asked to do so. Minor outlays will generally be recovered at the time the next fee note is raised.

It is not often appreciated in relation to court work that any party in a court action can meet with total success and yet not recover their full costs. Any expenses awarded to you by the court will not take account of every item of work carried out on your behalf. The expenses awarded by the court are known as “judicial expenses” and relate merely to the conduct of the court action and are set by a statutory scale of fees. The investigative work and any work carried out prior to raising the court action and some of the work carried out during the court action will not be covered in the award of judicial expenses and therefore, even in the event of total success it is inevitable that some additional fees and charges will be payable by you. It is for this reason that we always recommend to clients the need to take a “commercial view” in respect of court action even if you are confident of total success.

Where we receive sums which belong to you we are entitled to deduct from those sums all outstanding fees and outlays before sending you the balance.

To ensure our compliance with the requirements imposed upon us under the money laundering regulations we need to ensure that we have carried out our “money laundering check” in respect of every client of the firm. We may perform the check digitally via a third party, in which case you will be invited by email to provide the necessary information and upload documentation. Any personal details supplied will be encrypted. Otherwise, the check requires us to obtain from you and keep on file copies of documents which vouch your identity. In that case we require to see two of the following items: –

Your passport – the ideal evidence
Bank reference or statement showing your name and current address
Recent gas/electricity/telephone bill showing your name and current address
Your last council tax bill
Photo card driving licence or identification card

If requested please arrange to bring two of the above items with you at your first meeting. We will then photocopy whatever evidence is required and return the original document to you.

Please note that, whether the check is carried out digitally or otherwise, we will apply a charge of £10 per client.

Furthermore you must now confirm to us the source of your funding for this transaction. Any alteration in the source of your funding must be notified to us urgently and could result in a delay before we are able to proceed with the matter. It is very important that there is no last-minute change in your financing. Please note that in conveyancing transactions it is normal for there to be a serious financial penalty for delay in completing. If you are unable to complete on the contractual date this could mean that you are in breach of contract.

Please see the following checklist detailing our money laundering requirements.

If you are arranging for a telegraphic transfer of funds to our account, or to provide us with a Bankers Draft, the bank which transfers these funds or issues the draft must also confirm to us the name and number of the account from which it was drawn and the bank details. Any failure to do this may result in a delay in completing your transaction. We reserve the right to withdraw from acting for you if you fail to provide us with the information requested above which is necessary to comply with the Money Laundering Procedures required by the Law Society of Scotland. Please note that we cannot provide the firm’s bank details by e-mail and these details can be requested in person or via telephone or post.

Where Legal Advice and Assistance or Legal Aid is available to cover the work we are doing for you we will consider making an application on your behalf, although it may be that in certain circumstances we are only prepared to act on a private fee basis. If an application is to be made it will be necessary to assess your eligibility. We will explain the nature of the cover available to you and assist in completing all necessary forms. In the event that you receive Legal Advice and Assistance or Legal Aid and you recover any money from the matter in which we represent you, this may require to be paid to the Scottish Legal Aid Board to cover their costs to us in relation to the matter. Any balance will be reimbursed to you by the Scottish Legal Aid Board.

In the administration of executry estates it is often difficult to estimate the work that will be involved and thus the fee that will be incurred by the estate. Fees will generally be charged in a lump sum on conclusion of the administration. However, depending on the size and complexity of the estate, interim fees may be charged. In assessing the fees we take into account a number of important factors including the value of the transaction, the complexity and difficulty of the matter, the skill, knowledge and responsibility involved, the urgency of the matter and the place where we are required to carry out the work. Except in some circumstances (such as unusual responsibility or complexity, home visits or out of hours working) our work will be charged at the rate of 10 Units per hour. Please refer to the Schedules relating to general business and administration of executry estates. In executry estates our fees will be assessed by a professional firm of Law Accountants who will assess our fee on the foregoing basis. If the estate includes the sale of heritable property we will provide you with an estimate of the costs likely to be incurred prior to the property being marketed for sale. VAT will fall to be added to all fees invoiced. We will issue our fee note at the end of the administration or as and when interim fees are charged. Our fees are generally taken from the executry funds prior to distribution of the estate. In the event that you do not consider our fees to be reasonable then you have the right to have the fees assessed by the Auditor of Court, an independent public official. If the Auditor reduces the amount of our original fee we will only charge the reduced amount and we will pay the Auditor’s costs. If, however, the Auditor confirms that our fee is correct or undercharged we reserve the right to recover from you any additional fees to which the Auditor certifies we are entitled. In these circumstances you will be responsible for the Auditor’s costs.

Outlays associated with an executry estate are usually payable before executry funds are available. Generally, to allow the administration to run smoothly, we will meet such outlays on behalf of the estate. However, depending on the outlays concerned and the circumstances of the estate, we may ask you to reimburse those outlays within 7 days of being asked to do so. You would be entitled to be reimbursed from the estate as and when executry funds became available.

We will not be responsible for advising on tax or accountancy matters and, in respect of conveyancing transactions, we cannot give advice on contaminated land issues. If you wish advice on these matters you will require to obtain this from an independent expert.

Unless otherwise expressly agreed with you, the work that we undertake will not include monitoring or reminding you of renewal dates or other notice periods. Our fee for any work agreed with you will also not include any work instructed by you in respect of any post settlement claims in the context of a conveyancing transaction. Furthermore, we will not be responsible for advising on any area relating to overseas rights or assets. We recommend that you obtain specialist advice from the relative jurisdiction.

If at any time you have cause to question either the quality of our work or our professional practice then please raise the point with the member of staff dealing with your file at once. If the problem is such that you do not wish to speak to that member of staff then please ask to speak to Mrs Lesley Johnston, the firm’s client relations partner. In the unlikely event that we cannot resolve your complaint and if you remain dissatisfied with the service you have received you can lodge a complaint with the Scottish Legal Complaints Commission (SLCC), The Stamp Office, 10-14 Waterloo Place, Edinburgh, EH1 3EG. The SLCC operates strict time limits for accepting complaints, which require to be made within one year of the service ending or the conduct occurring. The SLCC will, however, disregard any time it considers that the complainer was excusably unaware of their concerns.

Lastly, may we mention the “Solicitors lien”. You are entitled to change solicitors at any time but you are responsible for the fees and outlays due to us until the time of change. If this occurs or in the event that a client fails to promptly settle a fee note when rendered we have the legal right to retain a client’s titles, file or other papers until such time as the fee note is settled.

These terms and conditions and any estimates will form the whole agreement between us to carry out the work referred to and are governed by the Law of Scotland and are subject to the non-exclusive jurisdiction of the Scottish Courts.